The justices are asking us to work out the issue. And they’re right
When I first read the Supreme Court’s decision in Fulton v. City of Philadelphia, I felt a mix of emotions: elation, because the unanimous decision showed the justices are more than mere political chess pieces for the parties who appointed them; but also disappointment. Not with the outcome — along with all nine justices, I agree with the result. My frustration stemmed from the Supreme Court, yet again, failing to provide clarity on how religious exercise should be balanced against the very important interest of protecting the civil liberties of our LGBTQ citizens.
Upon deeper reflection, however, I realized the problem is not that a majority of the justices avoided providing a panacea to the complex problems that arise from balancing these two important interests; the problem is that our society keeps asking them to do so. It’s time we do the work ourselves.
Before I explain why Fulton is less than satisfying, allow me to give some brief history.
The free exercise clause of the Constitution provides, “Congress shall make no law ... prohibiting the free exercise (of religion).” The Supreme Court has interpreted that language in varying ways over our country’s existence, but by 1989, most judges saw the test as relatively clear: If government burdened someone’s exercise of their religion, it needed to show (1) that it was trying to achieve an interest of the highest order; and (2) that it was taking the most narrow means possible of achieving that interest. A silly, but illustrative example: Government could outlaw child sacrifice, but it couldn’t blow up an entire church to stop it. Its action needed to be more precise.
Under that regime, religious claims did not win every time, but courts gave them serious consideration, and lawmakers knew they needed to be mindful of the religious minorities in their midst or face strict scrutiny from judges. It worked.
Then, in 1990, the court changed the test. In a case named Employment Division v. Smith, it ruled that if a law is “neutral” and “generally applicable,” government can burden religious exercise. Think about that. Think about its implications. If we as a society were to reinstate prohibition tomorrow, with no exceptions, it would mean that Catholics could not celebrate Mass and Jews could not celebrate Seder. That result, Justice Antonin Scalia wrote for a 5-4 majority, was the “unavoidable consequence of democratic government.”
What has ensued in the 30 years since Smith is, to be blunt, bedlam.
You read that right: One of the most fundamental of human rights receives just patchy and convoluted protections — today, in the United States. With Smith declaring the Constitution provides little shield for religious exercise, the only way that safeguard would come is if we as a society, through our elected officials, decide to grant it. We have failed to do so in any consistent way. If someone’s religious exercise is burdened, whether they receive robust safety depends on where they live and who passed the law burdening them. If a state passed it, the person might not receive protection. If a law burdens a prisoner, they likely will. If the law comes from a city government, they might not; if it comes from the federal government, they will. And what level of protection they receive is in a state of constant confusion, as evidenced by the Supreme Court’s needing to issue a multitude of orders during the pandemic to help lower governments and courts understand precisely what “neutral” and “generally applicable” in Smith actually mean.
Almost all of this confusion stems from deep disagreement about issues related to human sexuality. In most instances, the protection of religious exercise is not controversial — people are willing to provide it the highest protection. But, although only the thinnest sliver of religious liberty cases has anything do with LGBTQ rights, any time religious freedom intersects with LGBTQ rights at all, deep disagreements have prevented our country from protecting religious freedom or the civil liberties of those in the LGBTQ community.
For the past 30 years, the extremes on the far left and the far right have sought outright victories over their ideological opposites. Each views the other side as evil, not worthy of dialogue or compromise. Each believes that if they grant the other side anything, they will lose everything. What have they sacrificed for these battles? What is the collateral damage? Both religious freedom and the civil liberties of our LGBTQ citizens.
Those seeking to protect both sides (such as in the recently proposed Fairness for All Act) have been demonized by both camps.
The result is that protections for both religious exercise and LGBTQ citizens are unclear and inconsistent. In most red states, religious exercise receives protection but LGBTQ citizens do not. In blue states, LGBTQ citizens are safe but religious exercise is not. At the federal level, every time there is a change in power in the presidency, who receives protection from the executive branch flips.
This is where Fulton comes in.
The case involved Philadelphia’s decision to stop contracting with Catholic Social Services because CSS could not, consistent with its religious beliefs, certify same-sex couples to be foster parents. The court agreed to consider CSS’s claim that the city’s actions violated the free exercise clause. When it did, it suggested it might revisit the decision in Smith, lending hope that it might clear up all of the morass I described above. With a unanimous conclusion, the justices ruled in favor of CSS. What they didn’t do: overturn Smith. In the view of most of the justices, revisiting that decision was not necessary to resolve the Fulton case.
That is what makes the case unsatisfying. We still do not know how to balance the rights between these two groups. The court’s ruling was based on the specific facts of the particular case. I suspect it will do little to resolve this ongoing dispute in our country.
Yet, I am not surprised at the court’s reticence. Just a few years ago, in Masterpiece Cakeshop, another case involving LGBTQ interests and religious freedom concerns, the court had already hinted that it wanted us, the people, to develop a solution. In that particular passage, their tone was more parental than legal. Media outlets and most legal scholars ignored it. The justices spoke of the importance of our society resolving “these disputes ... with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities.”
It is time we listen. If nine headstrong justices, with strongly conflicting views on a host of issues, can come together to issue a unanimous ruling, certainly we, as a people, can find a way to protect both religious freedom and our LGBTQ citizens.
Steven T. Collis is law professor at the University of Texas-Austin and is the founding faculty director of Texas’s Bech-Loughlin First Amendment Center and Law and Religion Clinic. He is the author of the bestselling World War II nonfiction book “The Immortals” as well as “Deep Conviction.”
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